HOUSE CONSUMER AND PUBLIC AFFAIRS COMMITTEE SUBSTITUTE FOR
HOUSE BILL 767
49th legislature - STATE OF NEW MEXICO - first session, 2009
AN ACT
RELATING TO LAW ENFORCEMENT; CLARIFYING DISCOVERY PROCEDURES; PROVIDING FOR CONFIDENTIALITY.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. Section 57-1-1.1 NMSA 1978 (being Laws 1979, Chapter 374, Section 2) is amended to read:
"57-1-1.1. SHORT TITLE.--[Sections 57-1-1 through 57-1-15] Chapter 57, Article 1 NMSA 1978 may be cited as the "Antitrust Act"."
Section 2. Section 57-1-5 NMSA 1978 (being Laws 1979, Chapter 374, Section 6) is amended to read:
"57-1-5. ATTORNEY GENERAL--INVESTIGATION.--
A. If the attorney general has reasonable cause to believe that a person has information or may be in possession, custody or control of [any] a document or other tangible object relevant to a civil investigation for violation of Section 57-1-1 or 57-1-2 NMSA 1978, [he] the attorney general may, before bringing [any] an action, apply to the district court of Santa Fe county for approval of a civil investigative demand, demanding, in writing, [such] the person to appear and be examined under oath, to answer written interrogatories under oath or to produce the document or object for inspection and copying. The following procedures shall be used:
(1) the demand shall:
[(1)] (a) be served upon the person in the manner required for service of process in this state or, if the person cannot be found or does not reside or maintain a principal place of business within this state, in the manner required for service of process in the state in which the person resides, maintains a principal place of business or can be found;
[(2)] (b) describe the nature of the conduct under investigation;
[(3)] (c) describe the class [or classes] of documents or objects with sufficient definiteness to permit them to be fairly identified if the production of documents or objects is requested;
[(4)] (d) contain a copy of the written interrogatories if answers to written interrogatories are sought;
[(5)] (e) prescribe a reasonable time at which the person must appear to testify, within which to answer the written interrogatories or within which the document or object must be produced;
[(6)] (f) specify a place for the taking of testimony or for production and designate a person who may be an authorized employee of the attorney general to be custodian of the document or object; and
[(7)] (g) contain a copy of Subsections B, C, [and] D and E of this section;
(2) no demand to produce a document or object for inspection and copying shall contain [any] a requirement [which] that would be unreasonable or improper if contained in a subpoena duces tecum issued in a civil proceeding by a district court of this state; and
(3) the district court shall approve the demand if it finds that the attorney general has reasonable cause to believe that a person has information or may be in possession, custody or control of [any] a document or other tangible object relevant to a civil investigation for violation of Section 57-1-1 or 57-1-2 NMSA 1978 and that the demand is proper in form. A demand shall not be issued without approval of the district court.
B. If a person fails to comply with the written demand served upon [him] the person under the provisions of Subsection A of this section, the attorney general may file in the district court of the county in which the person resides or in which [he] the person maintains a principal place of business within this state or of the county of Santa Fe if the person neither resides nor has a principal place of business in this state a petition for an order to enforce the demand. Notice of hearing the petition and a copy of the petition shall be served upon the person, who may appear in opposition to the petition. If the court finds that the demand is proper in form and there is reasonable cause to believe that the person has information or may be in possession, custody or control of [any] a document or other tangible object relevant to a civil investigation for violation of Section 57-1-1 or 57-1-2 NMSA 1978, the court shall order the person to comply with the demand, subject to [any] modification that the court may prescribe. Upon motion by the person and for good cause shown, the court may make any further protective order in the proceedings that justice requires.
C. [Prior to the filing of an action under the provisions of the Antitrust Act for the violation under investigation, any] Testimony taken or material produced [under] by compulsory process pursuant to this section shall be kept confidential by the attorney general unless confidentiality is waived by the person being investigated and the person who has testified, answered interrogatories or produced material, or disclosure is authorized by the court. All court records, including docket, application, petitions, motions and other papers filed under this section shall be open to inspection only to the attorney general and the person upon whom the demand for which inspection is sought has been served, unless otherwise ordered by the court. Prior to voluntary testimony or production of material in lieu of compulsory process, the person testifying or producing material shall be afforded the opportunity to request in writing confidentiality for the testimony taken or the material produced or both and such request shall be honored pursuant to the terms of this subsection.
D. Any material produced by a federal agency or an agency of another state, which material is identified by the producing agency as confidential or otherwise access-restricted under federal or state law, shall be maintained with the same degree of confidentiality as would be required pursuant to the provisions of those laws. The producing agency shall identify the statutory or regulatory basis for such confidentiality.
E. It is the duty of the attorney general to maintain the confidentiality of all evidence, testimony, documents, work product or other results of an investigation pursuant to this section. The attorney general may exchange information obtained by a civil investigative demand with comparable authorities of other states or the federal government. Information acquired by the attorney general through a response to a civil investigative demand or by exchange with other states or the federal government shall be exempt from inspection pursuant to the Inspection of Public Records Act. Another state or a federal authority that receives confidential information from the attorney general shall be subject to the nondisclosure requirements of this section. A written, signed confidentiality agreement between the attorney general and the other state or federal authority shall be sufficient to subject the other state or federal authority to the nondisclosure requirements of this section.
[D. Any] F. A person compelled to appear under this section and required to testify under oath may be accompanied, represented and advised by counsel. An objection may properly be made, received and entered upon the record when it is claimed that [such] the person is entitled to refuse to answer the question on grounds of [any] a constitutional or other legal right or privilege."
Section 3. Section 57-12-12 NMSA 1978 (being Laws 1967, Chapter 268, Section 10) is amended to read:
"57-12-12. CIVIL INVESTIGATIVE DEMAND.--
A. Whenever the attorney general has reason to believe that [any] a person may be in possession, custody or control of an original or copy of [any] a book, record, report, memorandum, paper, communication, tabulation, map, chart, photograph, mechanical transcription, [or] other tangible document or recording [which he] or any other information that the attorney general believes to be relevant to the subject matter of an investigation of a probable violation of the Unfair Practices Act, [he] the attorney general may, prior to the institution of a civil proceeding, execute in writing and cause to be served upon the person a civil investigative demand requiring [such] the person to produce documentary material and permit the inspection and copying of the material. The demand of the attorney general shall not be a matter of public record and shall not be published by [him] the attorney general except by order of the court.
B. Each demand shall:
(1) state the general subject matter of the investigation;
(2) describe the classes of documentary material to be produced with reasonable certainty;
(3) prescribe the return date within which the documentary material is to be produced, which in no case shall be less than ten days after the date of service; and
(4) identify the members of the attorney general's staff to whom [such] the documentary material is to be made available for inspection and copying.
C. No demand shall:
(1) contain [any] a requirement [which] that would be unreasonable or improper if contained in a subpoena duces tecum issued by a court of this state; [or]
(2) require the disclosure of any documentary material [which] that would be privileged or [which] that for any other reason would not be required by a subpoena duces tecum issued by a court of this state; or
(3) require the removal of any documentary material from the custody of the person upon whom the demand is served except in accordance with the provisions of Subsection E of this section.
D. Service of the demand may be made by:
(1) delivering a duly executed copy [thereof] to the person to be served or, if the person is not a natural person, to the statutory agent for the person or to [any] an officer of the person to be served; [or]
(2) delivering a duly executed copy [thereof] to the principal place of business in this state of the person to be served; or
(3) mailing by registered or certified mail a duly executed copy of the demand addressed to the person to be served at [his] the person's principal place of business in this state or, if the person has no place of business in this state, to [his] the person's principal office or place of business.
E. Documentary material demanded pursuant to the provisions of this section shall be produced for inspection and copying during normal business hours at the principal office or place of business of the person served or may be inspected and copied at such other times and places as may be agreed upon by the person served and the attorney general.
F. No documentary material produced pursuant to a demand, or copies thereof, shall, unless otherwise ordered by the district court in the county in which the person resides or has [his] the person's principal place of business or is about to perform or is performing the practice [which] that is alleged to be unlawful under the Unfair Practices Act, for good cause shown, be produced for inspection or copying by anyone other than an authorized employee or agent of the attorney general nor shall the contents [thereof] be disclosed to anyone other than an authorized employee or agent of the attorney general or in court in an action relating to a violation of the Unfair Practices Act. The attorney general may exchange information obtained by a civil investigative demand with comparable authorities of other states or the federal government. Information acquired by the attorney general through a response to a civil investigative demand or by exchange with other states or the federal government shall be exempt from inspection pursuant to the Inspection of Public Records Act. Another state or a federal authority that receives confidential information from the attorney general shall be subject to the nondisclosure requirements of this section. A written, signed confidentiality agreement between the attorney general and the other state or federal authority shall be sufficient to subject the other state or federal authority to the nondisclosure requirements of this section.
G. At any time before the return date of the demand, a petition to set aside the demand, modify the demand or extend the return date [thereon] on the demand may be filed in the district court in the county in which the person resides or has [his] the person's principal place of business or is about to perform or is performing the practice [which] that is alleged to be unlawful under the Unfair Practices Act, and the court upon a showing of good cause may set aside the demand, modify it or extend the return date of the demand.
H. After service of the investigative demand upon [him] the person, if [any] the person neglects or refuses to comply with the demand, the attorney general may invoke the aid of the court in the enforcement of the demand. In appropriate cases, the court shall issue its order requiring the person to appear and produce the documentary material required in the demand and may, upon failure of the person to comply with the order, punish the person for contempt.
I. This section shall not be applicable to criminal prosecutions."
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